Kimpel v. Moon

• Decision Date: 03 August 1934
• Docket Number: Nos. 410, 411.,s. 410, 411.
• Parties: KIMPEL v. MOON et al. KIMPEL et al. v. MANAGER.
• Court: New Jersey Supreme Court

174 A. 209

KIMPEL

v. MOON et al.

KIMPEL et al.

v. MANAGER.

Nos. 410, 411.

Supreme Court of New Jersey.

Aug. 3, 1934.

Appeal from District Court of East Orange.

Actions by Madeline Kimpel against George E. Moon and Arthur Manager, and by Martin Kimpel and Madeline Kimpel against the same defendants, wherein there was a discontinuance as to first-named defendant Judgment for plaintiff, and second-named defendant appeals.

Affirmed in part, and reversed in part.

Argued May term, 1934, before LLOYD, CASE, and DONGES, JJ.

Herbert J. Kenarik, of Newark, for respondents.

Mapes Davidson, of Newark, for appellant.

CASE, Justice.

This is an appeal from a judgment entered in two causes, tried together, in the district court of the city of East Orange. There was a discontinuance as to the defendant Moon, leaving Arthur Manager the sole defendant. The first suit is for personal injuries suffered by Mrs. Kimpel in a collision between an automobile, in which she was a passenger, driven by the defendant and one owned by Mrs. Kimpel and driven by Mr. Kimpel. The second is by Mrs. Kimpel for her property damage and by Mr. Kimpel for resultant expenses and loss of consortium. Mrs. Kimpel was awarded $100 for her personal injuries and nothing for property damage; and the co-plaintiff was awarded $40 on his count for expenses and loss of consortium. The court, sitting without a jury, determined that the accident "was caused by the joint negligence of the parties," meaning thereby Martin Kimpel and Arthur Manager, drivers of the respective cars. The appeal is by the defendant.

There are eight points argued. The first is that the question, "Where were you married?" asked of Martin Kimpel on cross-examination, was overruled. Kimpel's claim for loss of consortium was dependent upon his being Mrs. Kimpel's husband. He had testified on direct that Madeline Kimpel was his wife. On cross the above question was asked, and the examining attorney stated that it was for the purpose of ascertaining whether the relationship of husband and wife in fact existed. The question was clearly grounded in essential testimony brought out during the direct examination. It was both relevant and material. The ruling was erroneous.

Point 2 relates to a question asked of Mrs. Kimpel which the court overruled. The question was not strict cross-examination. Points 3, 4, and 5 set out overruled questions asked of the same witness in an effort to lay the foundation for an impeachment but incompetent because not sufficiently definite. Point 6 complains because the court stopped a witness from testifying that after the accident plaintiff Martin Kimpel "started bawling" at some one—a ruling that was within the realm of judicial discretion. Points 2 to 6, inclusive, present no harmful error.

. The question presented under the seventh point is whether the husband, having been found guilty of contributory negligence, may recover for incidental expense and loss of consortium. We may start with the established rule in this state as given by Mr. Justice Depue in Menger v. Laur, 55 N. J. Law, 205, at 215, 26 A. 180, 184, 20 L. R. A. 61: "If the plaintiffs negligence contributed to the injury, so that, if he had not been negligent, he would have received no injury from the defendant's negligence,—the plaintiff's negligence being proximately a cause of the injury,—he is without redress. * * *" It has been said by this court that the underlying theory is that one who invites an injury cannot make it the basis of a recovery. Schnackenberg & Co. v. D., L. & W. R. Co., 86 N. J. Law, 517, 93 A. 701. The trial court's factual finding that Kimpel was guilty of contributory negligence would, on the face of it,...